Nevada blocked from carrying out nation's first execution using fentanyl

Scott Raymond Dozier appears in a photo provided by the Nevada Department of Corrections in Nevada, U.S., July 11, 2018. Nevada Department of Corrections/Handout via REUTERS

Mark Berman, the Washington Post

Hours before Nevada was set to carry out the country’s first lethal injection using the powerful opioid fentanyl, a judge on Wednesday halted the execution due to a challenge from a drug company that objects to the state’s plan to use one of its products as a sedative for the procedure.

Nevada’s plans to use fentanyl as part of its execution of Scott Dozier - a convicted murderer who has said he wants the lethal injection to proceed - made it the latest in a string of states that have turned to unprecedented drug combinations or uncommon execution methods as they try to carry out death sentences amid difficulties obtaining drugs.

While some other states have turned to comparatively unknown chemicals, Nevada’s plan stood out for relying on fentanyl, a synthetic painkiller that has helped fuel the country’s ongoing opioid epidemic. Depending on what happens in Dozier’s case, Nebraska ultimately could wind up carrying out the first fentanyl-assisted execution, something that state is seeking to do this summer.

Dozier, 47, was convicted of killing a man in a Las Vegas hotel, cutting him into pieces and stealing his money in 2002. Dozier also has been clear about his desire to have the execution carried out.

“Life in prison isn’t a life,” he told the Las Vegas Review-Journal this week. “This isn’t living, man. It’s just surviving. . . . If people say they’re going to kill me, get to it.”

Though Dozier doesn’t oppose the execution, Nevada officials faced a late challenge from Alvogen, a pharmaceutical firm that said the state “illegitimately acquired” its drug, the sedative midazolam. That drug has become controversial for its use in executions, and Alvogen highlighted some of those incidents in court, including the bungled 2014 Oklahoma execution that saw an inmate grimace and kick, an Arizona execution that same year that took nearly two hours and the 2016 Alabama execution that had witnesses recounting that the inmate coughed and heaved.

Alvogen asked a judge to block Nevada from using its drug and called for the product to be returned. During a hearing Wednesday, Judge Elizabeth Gonzalez, who presides over the civil division of the district court in Clark County, barred the state from using its supply of midazolam in Dozier’s execution, according to a court spokeswoman. Gonzalez also set a status check in the case for September.

According to Nevada’s execution protocol, the state’s plan going into Wednesday was to inject Dozier with three drugs: midazolam to sedate him, fentanyl to cause him to lose consciousness and then cisatracurium to paralyze his muscles. Medical experts warned that the final drug could make the procedure riskier, arguing that if either of the first two drugs are administered improperly or do not work, Dozier could potentially remain conscious while the paralytic renders him unable to move or breathe.

A spokeswoman for the Nevada Department of Corrections declined before the hearing to comment on the lawsuit or the company’s claims that the state improperly obtained the drug, citing the pending court appearance. She did not immediately respond to a request for comment after Gonzalez’s decision about the state’s next steps.

Alvogen, in a statement after the hearing, said it was pleased Gonzalez granted a temporary restraining order blocking the use of midazolam in the execution, which was scheduled for Wednesday night. Alvogen said it “does not condone the use of any of its drug products, including midazolam, for use in state-sponsored executions.”

An attorney for Dozier could not be reached for comment Wednesday immediately after the ruling. The American Civil Liberties Union of Nevada had called on the state to halt the execution and accused state officials of an “egregious” lack of transparency regarding the execution.

The Alvogen challenge in Nevada carried echoes of a drug distributor’s attempts last year to have courts block Arkansas from using a chemical it sold in a planned series of executions. The legal maneuver ultimately failed and Arkansas went on to carry out four executions in eight days using that drug.

The legal battles between states and drug companies highlighted the opposition the businesses have shown to their chemicals being used in executions, a stance that has forced states to scramble to obtain the chemicals they want for lethal injections. In response, states including Ohio, Florida and Oklahoma have adopted or suggested new and untested drug combinations. States also have considered measures beyond lethal injection.

Oklahoma this year said it would switch to nitrogen gas for all executions, while other states have looked to other methods, including firing squads in Utah and the electric chair in Tennessee.

Dozier’s execution has been halted before because of court battles focused on the drugs involved. Nevada did not originally plan to use midazolam in his execution, but officials said they had to switch to it after its supply of diazepam - a sedative better known as Valium - expired.

Nevada last carried out an execution in 2006.

Mark Berman, the Washington Post

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